Ontario Judge Affirms “Reasonable Foreseeability” Requirement for MAID Does Not Require Imminent Death

Today, an Ontario judge granted that the death of the applicant, an 80-year old woman suffering from osteoporosis, is “reasonably foreseeable” within the meaning of s.241.2(2)(d) of the Criminal Code. [1] As such, the doctors who had assessed her eligibility for medical assistance in dying would not be criminally charged for assisting her death, even though her underlying condition was not, strictly speaking, a terminal illness.

The applicant had originally sought a declaration that criminal charges not be laid against any physician that provides her medical aid in dying. Ontario’s and Canada’s Attorney Generals argued that such a declaration should be refused because granting it would improperly interfere with the government’s prosecutorial discretion. Justice Pernell of the Superior Court of Justice conceded that Ontario and Canada’s position are correct, but rendered their argument “unhelpful” by characterizing the issue as solely one of statutory interpretation.[2]

Perrell J. determined that Canada’s euthanasia law does not require that people be dying from a fatal illness or disease to be “terminally ill”; rather it uses more flexible wording, merely that “their natural death has become reasonably foreseeable, taking into account all their medical circumstances”. He reasoned that natural death need not be imminent but merely that death connected to natural causes be reasonably foreseeable; this, he concluded, included the case at bar.  Furthermore, seeing that Parliament intended for the meaning of “reasonable foreseeability” to be assessed solely by medical professionals, he stated that it was not for the courts to grant approval to requests for medical assistance in dying nor to reevaluate doctor’s assessment for eligibility.[3]  

Pro-euthanasia advocates, however, maintain that the “reasonable foreseeability” requirements are still too strict and prevent patients with mental illness and non-terminal conditions from accessing physician-assisted suicide. Constitutional challenge seeking to strike down these safeguard provisions have been launched in both British Columbia (the Lamb litigation) and Quebec. While these requirements were enacted as protection for vulnerable patients, they are now being framed as discriminatory “barriers to access” to “a response to a need”. CLF is closely monitoring this litigation as it develops in both provinces.

[1] AB v Canada (Attorney General), 2017 CanLII 3759 (ONSC).

[2] Ibid at para 4.

[3] Ibid at para 66.